Swann v Spiropoulos; Von Der Heyde v Spiropoulos [2006] NSWSC 461

New South Wales Supreme Court

CITATION : Swann v Spiropoulos; Von Der Heyde v Spiropoulos [2006] NSWSC 461

HEARING DATE(S) : 18 May 2006

JUDGMENT DATE : 18 May 2006

JURISDICTION : Equity

JUDGMENT OF : Campbell J

EX TEMPORE JUDGMENT DATE : 05/18/2006

DECISION : Directions given

CATCHWORDS : PROCEDURE – miscellaneous procedural matters – litigation where an out of court inspection would be useful, but conducting such inspection is not practical – directions for production of video or DVD – REAL PROPERTY – easements – directions for production of video or DVD of land in question

LEGISLATION CITED : Conveyancing Act 1919

Melinda Jane Swann - First Plaintiff (5723/04) Silvia Roberts - Second Plaintiff (5723/04) PARTIES : Victor Leonard von der Heyde - Plaintiff (6485/04) Constantinos Spiropoulos - First Defendant (5723/04 & 6485/04) Margaret Spiropoulos - Second Defendant (5723/04 & 6485/04) Sarah Louise Doherty - Third Defendant (5723/04 & 6485/04)

FILE NUMBER(S) : SC 5723/04; 6485/04

COUNSEL : M Hewett, solicitor - Plaintiffs J J Loofs - First and Second Defendants

SOLICITORS : Pike Pike & Fenwick - Plaintiffs John McDonald and Partners - First and Second Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

CAMPBELL J

THURSDAY 18 MAY 2006

6485/04 VICTOR LEONARD VON DER HEYDE v CONSTANTINOS SPIROPOULOS & ORS 5723/04 MELINDA JANE SWANN & ANOR v CONSTANTINOS SPIROPOURLOS & ORS JUDGMENT 1 HIS HONOUR: This matter is before me today for directions. It is a case under section 88K Conveyancing Act 1919, where the plaintiffs seek the grant of a particular right of way. The land in question is at Mullumbimby on the far north coast of NSW. The case is set down for three days, in mid August 2006. 2 From the affidavit evidence it does not appear to be an effective use of resources to have the Court travel to Mullumbimby to have a view of the land in question. Nonetheless, a view is very often of assistance in cases involving a controversy about easements. 3 After discussion between the legal representatives of the plaintiffs and the first and second defendants, it appears that a useful second-best alternative to a view would be to cause a video or DVD to be produced which shows features of the land which are relevant to the application. 4 There is a complication, in that there is a third defendant in the proceedings, who is the owner of one of the lots of land over which the easement is sought. That defendant has appeared, but does not have a solicitor on the record in the proceedings. 5 Ordinarily, the Court would rely upon the solicitors for parties to cooperate in a sensible fashion in producing the video or DVD. I propose to rely on the solicitors for those parties who are represented to cooperate in a sensible fashion in carrying out the direction which I will make. However, it is also important to give the third defendant an opportunity to participate in the process, and the directions which I shall make shall do so. 6 I direct the legal advisers of those parties that have solicitors on the record to confer and cause to be produced, on or before 14 July 2006, a video or DVD showing those physical features of the land and its surroundings which any such party would have wished to point out if a view had occurred, and to prepare an agreed brief description of the relevant features visible in the video or DVD. 7 I direct that the solicitor for the plaintiffs write to the third defendant not less than 14 days prior to the date when that video or DVD is to be produced, providing her with a copy of the directions made today, and informing her that if she wishes she may attend, at the date, time and place at which the video or DVD will be produced, and request the solicitors for those parties that have solicitors on the record to include in the video or DVD such relevant physical features of the land and its surroundings which the third defendant would have wished to point out if a view had occurred. 8 I direct the solicitors to include such features requested by the third defendant as in their opinion it is reasonable to request be included. 9 I direct the solicitors for those parties that have solicitors on the record to inform the third defendant in writing on or prior to 28 July 2006 of the text of the agreed description of the relevant features visible, and invite her to agree with or disagree with that description. **********